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*********************************************** 
STATE v. RAYNOR—CONCURRENCE

D’AURIA, J., with whom PALMER and MULLINS,

Js., join, concurring. I agree with and join the majority

opinion. In particular, I agree with the majority that

the trial court improperly refused to conduct a hearing

pursuant to State v. Porter, 241 Conn. 57, 80–90, 698

A.2d 739 (1997), cert. denied, 523 U.S. 1058, 118 S. Ct.

1384, 140 L. Ed. 2d 645 (1998), and that the inclusion

of the contested expert evidence substantially affected

the verdict. Specifically, I agree that the trial court

abused its discretion by relying on the holding of State

v. Legnani, 109 Conn. App. 399, 421, 951 A.2d 674, cert.

denied, 289 Conn. 940, 959 A.2d 1007 (2008), to deny the

defendant, Donald Raynor, a Porter hearing. Moreover,

I agree that a separate trial court’s ruling in State v.

Terrell, Superior Court, judicial district of New Haven,

Docket No. CR-17-0179563-S (March 21, 2019) (68 Conn.

L. Rptr. 323), which has not been subject to appellate

scrutiny, cannot save the trial court’s ruling in the present case. See footnote 13 of the majority opinion and

accompanying text. I write separately to raise an issue

regarding the proper remedy in cases like this one in

which the trial court improperly refuses to hold a Porter

hearing. I believe there is an argument that this error

can be cured by a limited remand for a Porter hearing,

with the vacatur of the trial court’s judgment following

only if the trial court ultimately finds the contested

expert evidence inadmissible.

This court previously has held that, when the trial

court conducts a Porter hearing but abuses its discretion by admitting or precluding the expert evidence,

the proper remedy is a new trial if the admission of the

expert evidence substantially affected the verdict. See,

e.g., Maher v. Quest Diagnostics, Inc., 269 Conn. 154,

157 n.4, 182–83, 847 A.2d 978 (2004). The reason for

such a remedy is logical: the record establishes that

the inadmissible evidence infected the trial court’s judgment. Likewise, this court also has remanded a case

for a new trial when the trial court improperly refused

to hold a Porter hearing at all, and the expert evidence

substantially affected the verdict, although the court

could not determine whether the evidence was inadmissible. See Prentice v. Dalco Electric, Inc., 280 Conn.

336, 339, 907 A.2d 1204 (2006) (‘‘We conclude that the

testimony in question was scientific evidence that

required a validity assessment designed to ensure reliability pursuant to our analysis in Porter. Accordingly,

we reverse the judgment of the trial court and remand

the case for a new trial.’’), cert. denied, 549 U.S. 1266,

127 S. Ct. 1494, 167 L. Ed. 2d 230 (2007). The reason

for a new trial in this second scenario, however, is not

as clear to me. This court has not had the opportunity

to determine whether a different remedy is required.
In a future case, I would entertain an argument that,

once an appellate court determines that the trial court

improperly refused to conduct a Porter hearing and the

contested expert evidence substantially affected the

verdict, a new trial is not automatically the proper remedy but that, instead, we can direct the trial court on

remand to hold the Porter hearing, even postjudgment.

If the expert witness’ methodology does not pass muster, then the trial court would have to vacate the conviction and order a new trial. If the methodology passes

muster, however, the judgment of conviction would

remain intact. After the Porter hearing, however, the

defendant could appeal the trial court’s ruling confirming the admissibility of the evidence.

I recognize, however, that it is not appropriate in the

present case to address or decide this issue for two

reasons. First, under current law, which neither party

contests or asks us to overrule, this court has determined that a remand for a new trial is the proper remedy

when the trial court improperly refused to hold a Porter

hearing and the admission of the expert testimony substantially affected the verdict. Second, neither party has

raised or briefed whether a remand for a Porter hearing

is the appropriate remedy, before this court or the

Appellate Court. I therefore agree with the majority’s

determination to remand the present case for a new

trial.

I now turn to our case law. In Prentice v. Dalco

Electric, Inc., supra, 280 Conn. 345–47, a civil case, this

court held that the trial court incorrectly determined

that expert testimony by a mechanical and forensic

engineer regarding the effect of wind conditions was

not scientific, and, thus, the court improperly refused

to conduct a Porter hearing. After determining that this

error substantially affected the verdict, this court

remanded the case for a new trial. Id., 359–61. My

research has not turned up a criminal case from this

court or the Appellate Court in which the trial court

improperly refused to hold a Porter hearing and that

error substantially affected the verdict, but it would

have to follow that a new trial would be the remedy in

criminal cases as well.1

Additionally, a remand for a new trial is the majority

rule under jurisprudence regarding Daubert v. Merrell

Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct.

2786, 125 L. Ed. 2d 469 (1993), the federal analogue to

Porter. See, e.g., Dodge v. Cotter Corp., 328 F.3d 1212,

1229 (10th Cir.) (when trial court fails to conduct Daubert hearing, proper remedy is new trial, not remand for

Daubert hearing), cert. denied, 540 U.S. 1003, 124 S. Ct.

533, 157 L. Ed. 2d 408 (2003); cf. Goebel v. Denver &

Rio Grande Western Railroad Co., 215 F.3d 1083, 1089

(10th Cir. 2000) (explaining that, when trial court fails

to conduct Daubert hearing, there are two possible

remedies: new trial, or, if record is sufficient to deter-
mine reliability, appeals court may undertake its own

Daubert analysis).

There is at least one court that has recognized that

a limited remand for a Porter hearing may be the proper

remedy in certain instances, however. See United States

v. Bacon, 979 F.3d 766, 770 (9th Cir. 2020) (en banc)

(overruling prior case law that required reviewing court

to remand case for new trial if trial court improperly

failed to hold Daubert hearing and holding instead that,

‘‘when a panel of [the Ninth Circuit] concludes that [a]

district court has committed a [nonharmless] Daubert

error, the panel has discretion to impose a remedy ‘as

may be just under the circumstances,’ ’’ including ordering limited remand); see United States v. Bacon, 829

Fed. Appx. 247, 248 (9th Cir. 2020) (directing District

Court on remand to conduct whatever proceedings it

deems appropriate to determine whether expert testimony was admissible pursuant to Daubert); see also

Estate of Barabin v. AstenJohnson, Inc., 740 F.3d 457,

468–69 (9th Cir.) (Nguyen, J., concurring in part and

dissenting in part) (questioning majority’s remedy of

new trial and urging conditional vacating of judgment

and remand to District Court to conduct Daubert determination in first instance), cert. denied, 574 U.S. 815,

135 S. Ct. 55, 190 L. Ed. 2d 30 (2014); Estate of Barabin

v. AstenJohnson, Inc., supra, 471, (Nguyen, J., concurring in part and dissenting in part) (remand for Daubert

hearing is better remedy because it does not unreasonably burden judicial system by requiring new trial and

because, in absence of Daubert hearing, reviewing court

cannot determine whether expert testimony was inadmissible and, thus, cannot conduct harmless error analysis). In the present case, the trial court erred by failing

to exercise its discretion. A limited remand for a Porter

hearing could remedy that error, requiring a new trial

only if the expert witness’ methodology does not pass

muster. This procedure may be a more efficient use of

judicial resources than requiring new trials in all cases

involving the improper refusal to conduct a Porter hearing. ‘‘If the disputed expert testimony was admissible

pursuant to . . . [Porter], despite the [trial] court’s failure to fulfill its gatekeeping function, then no harm, no

foul. On the other hand, if the testimony was inadmissible, then a . . . [new trial would be required].’’

(Emphasis added.) Estate of Barabin v. AstenJohnson,

Inc., supra, 469 (Nguyen, J., concurring in part and

dissenting in part).

For similar efficiency reasons, this court has

employed this exact procedure to remedy errors in

other criminal cases that are at least arguably analogous. For example, in State v. Jarzbek, 204 Conn. 683,

684, 529 A.2d 1245 (1987), cert. denied, 484 U.S. 1061,

108 S. Ct. 1017, 98 L. Ed. 2d 982 (1988), a case involving

sexual abuse of a minor victim, the state requested and

was granted permission to exclude the defendant from

the witness room during the videotaping of the minor
victim’s testimony. After a jury found the defendant

guilty, he appealed, arguing that this violated his constitutional right to confrontation. Id., 690. This court held

that, ‘‘in criminal prosecutions involving the alleged

sexual abuse of children of tender years, the practice

of videotaping the testimony of a minor victim outside

the physical presence of the defendant is, in appropriate

circumstances, constitutionally permissible’’ but that

the trial court first ‘‘must determine, at an evidentiary

hearing, whether the state has demonstrated a compelling need for excluding the defendant from the witness

room during the videotaping of a minor victim’s testimony.’’ Id., 704. Because the trial court did not conduct

this hearing prior to granting the state’s request, this

court remanded the case for an evidentiary hearing,

explaining that, ‘‘[i]f the [trial] court concludes that the

state has not met its burden of proving such a need by

clear and convincing evidence, the defendant is entitled

to a new trial from which the videotaped testimony of

[the victim] must be excluded. If the court concludes

that the state has met its burden, the defendant’s conviction must stand, subject to any further appeal by the

defendant to this court concerning the validity of the

trial court’s ruling on this issue.’’ Id., 708.

Similarly, when this court has determined that the

trial court improperly failed to conduct or apply the

proper standard for a competency hearing, this court

has remanded the case for a competency hearing and

required a new trial only if the trial court determines

on remand that the defendant was incompetent to stand

trial at the time of the trial. See State v. Connor, 292

Conn. 483, 528–29, 533, 973 A.2d 627 (2009). Likewise,

this court has determined that, when the trial court

improperly failed to conduct a hearing pursuant to Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed.

2d 69 (1986), and the circumstances surrounding the

voir dire can be reconstructed, a limited remand for a

Batson hearing is the appropriate remedy, not a new

trial. See State v. Rigual, 256 Conn. 1, 12–13, 771 A.2d

939 (2001). Additionally, this court has remanded cases

for hearings pursuant to Brady v. Maryland, 373 U.S.

83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), conditioning

the need for any new trial on the outcome of the Brady

hearing. See State v. Pollitt, 205 Conn. 132, 134–37, 531

A.2d 125 (1987).2

In these cases, a reversal of the conviction followed

only if the trial court on remand found that reversible

error occurred. This is not unlike ordering a trial court

to make findings by way of an articulation while an

appeal is pending in our court, the only difference being

that, procedurally, we would actually remand the matter

rather than simply order an articulation. Even the rules

for articulations prompted by a party’s motion contemplate situations in which a trial court might take further

evidence. See Practice Book § 66-5 (‘‘[i]f any party

requests it and it is deemed necessary by the trial court,
the trial court shall hold a hearing at which arguments

may be heard, evidence taken or a stipulation of counsel

received and approved’’).

There might be contrary arguments I have not considered. But the state and the public have an interest in

preserving convictions otherwise fairly arrived at. In

light of the case law previously discussed, I would entertain an argument in a future case that such a procedure

should be undertaken when the trial court improperly

refuses to conduct a Porter hearing. Until a Porter hearing is held, we do not know if the defendant’s trial was

tainted and, thus, do not know whether a new trial is

required.

Nevertheless, in light of our current law and the fact

that the appropriate scope of the remedy has not been

argued by the parties, I agree with the majority that we

must remand the present case for a new trial.

1 This is supported by this court’s recent decision in State v. Edwards,

325 Conn. 97, 133–34, 156 A.3d 506 (2017), in which we held that the trial

court improperly refused to hold a Porter hearing but that this failure was

harmless, as it did not substantially affect the verdict. Nevertheless, in

discussing the applicable standard of review and legal principles, we stated

that a new trial would be required only if the defendant showed that the

error substantially affected the verdict, citing to cases involving improper

evidentiary rulings that did not involve Porter. Id., 123 (‘‘ ‘[i]f we determine

that a court acted improperly with respect to the admissibility of expert

testimony, we will reverse the trial court’s judgment and grant a new trial

only if the impropriety was harmful to the appealing party’ ’’); id. (quoting

Weaver v. McKnight, 313 Conn. 393, 405, 97 A.3d 920 (2014), which involved

trial court’s improper exclusion of expert testimony on ground that experts

lacked sufficient qualifications). This at least suggests that a remand for a

new trial would have been the proper remedy under current law if the

defendant had proven harm.

2

In State v. Snook, 210 Conn. 244, 555 A.2d 390, cert. denied, 492 U.S.

924, 109 S. Ct. 3258, 106 L. Ed. 2d 603 (1989), this court explained that it

has ‘‘on several occasions remanded a case for the limited purpose of

conducting an evidentiary hearing necessary for appellate review of a claim.

See, e.g., State v. Badgett, 200 Conn. 412, 433–34, 512 A.2d 160 [(remanding

case for factual hearing to determine whether illegally discovered evidence

was admissible under recently articulated inevitable discovery rule), cert.

denied, 479 U.S. 940, 107 S. Ct. 423, 93 L. Ed. 2d 373 (1986)]; State v. Pollitt,

199 Conn. 399, 415–16, 508 A.2d 1 (1986) (remanding case for factual hearing

to determine whether state suppressed exculpatory evidence); cf. State v.

Garrison, 199 Conn. 383, 388–89, 507 A.2d 467 (1986) ([when] court [was]

unable to determine from record whether state established defendant’s guilt

beyond reasonable doubt, court ordered remand for further articulation of

trial court’s grounds for rejecting defendant’s defenses).’’ State v. Snook,

supra, 254.